No. 02309389 (1999). EMPLOYEE: Robert Berg.

• Case Date: March 09, 1999
• Court: Massachusetts

Massachusetts Workers Compensation 1999. No. 02309389 (1999). EMPLOYEE: Robert Berg COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Robert Berg EMPLOYER: City of Newton INSURER: City of NewtonBOARD NO. 02309389REVIEWING BOARD DECISION (Judges Smith, McCarthy and Wilson)APPEARANCES John K. McGuire, Jr., Esq., for the employee Richard G. Chmielinski, Esq., for the self-insurer SMITH, J. The employee, a permanent substitute teacher, appeals from the denial of his claim. Under G.L. c. 152, § 69, which made workers' compensation coverage potentially available for all school department personnel, no award is due without an election to provide coverage. The judge found that the City, in the exercise of its prerogative, did not elect to provide workers' compensation coverage for its substitute teachers. The decision is consistent with judicial precedent interpreting the terms "laborers, workmen and mechanics." We therefore affirm it. It was undisputed that Robert Berg sustained a personal injury on March 14, 1989 arising out of and in the course of his employment as a substitute teacher. The injury occurred when he attempted to calm down students who were wrestling. (Dec. 2; Employee Ex. 1; Tr. 10.) The only question before us is whether Berg comes within the statutory classification of "laborers, workmen, and mechanics," or whether the City otherwise affirmatively elected to provide workers' compensation coverage for substitute teachers, as provided in G.L. c. 152, § 69. Section 69 reads in pertinent part: "any . . . city. . . having the power of taxation which has accepted chapter eight hundred and seven of the acts of nineteen hundred and thirteen . . . shall pay to laborers, workmen, mechanics, and nurses, employed by it who receive injuries arising out of and in the course of their employment . . . , the compensation provided by this chapter. . . . Sections seventy to seventy-five, inclusive, shall apply to . . . any . . . city . . . having the power of taxation which has accepted said chapter eight hundred and seven . . . The terms laborers, workmen and mechanics, as used in sections sixty-eight to seventy-five, inclusive, shall include all employees of any such city, . . . and shall include other employees . . . , regardless of the nature of their work, . . . of any such . . . city . . . to...